How Public Lustration Council under Ministry of Justice was established

27.11.2015

The court has found that at the time of establishing the composition of the Public Lustration Council there was no… procedure for the establishment of such council.

Adoption of the Law of Ukraine on Government Cleansing had a great purpose to initiate cleansing of government bodies and remove criminal elements by means of lustration based on the law. In this case, the so-called ‘revolutionary practicability’, which made it possible for certain officials to appoint ‘their people’ in the establishing of the Public Lustration Council under the Ministry of Justice, cannot be an excuse for violation of constitutional principles of the rule of law.

This article is based on the judgement of the District Administrative Court of Kyiv with regard to the case 826/17473/14 (DOCUMENT), which was heard in the period from November 2014 to June 2015, and in which the panel of judges was replaced in March 2015 following the initiative of the Ministry of Justice. The judgement entered into effect on September 1, 2015 upon pronouncement of the decision of the Kyiv Administrative Court of Appeal. And although both instances dismissed the claims (the only thing left to hope for is fair hearing of cassation appeal), yet, in the explanatory part, the court established the facts of prejudicial effect, specifically: facts of gross negligence of law and fundamental provisions of the Constitution of Ukraine, and just outright lies from the Ministry of Justice of Ukraine, Minister of Justice and individuals engaged by the Minister in the establishment of the Public Lustration Council.

Applicants to the Public Council on lustration. Photo source: 4vlada.com

Under Article 5-1 of the Law of Ukraine on Government Cleansing, “the Ministry of Justice of Ukraine, within the earlier of one month upon the effective date hereof, shall establish an advisory public agency on lustration under the Ministry of Justice of Ukraine to ensure public control of the government cleansing (lustration) process, to be consisting of mass media representatives and members of the public.”

As per announcement of the call for competition on the establishment of the Public Lustration Council, placed at the official website of the Ministry of Justice of Ukraine on October 13, 2014, I submitted a petition (application) regarding consideration of my candidacy to be included in the membership of the Council, having expressed a wish to be personally present during consideration of my candidacy. Moreover, I requested to be informed in writing of the current Regulations (Provisions) on the establishment of the Public Lustration Council, of the members of the competition commission who are honorably committed to appoint deserving individuals, as well as of the conditions of the competitive process.

I received a confirmation from the address specified in the call that the data was received. However, there was no reply to all of the additional questions.

At the same time, considering the fact that, by a special law, the Ministry of Justice was entrusted with the duty to establish the Public Lustration Council, the author, during his personal appointment, addressed the Minister of Justice of Ukraine represented by the Minister’s Delegate, and handed the application regarding consideration of the author’s candidacy to be included in the membership of the Public Lustration Council under the Ministry of Justice of Ukraine. Copies of corresponding documents and a request for public information to obtain written information on terms and procedures of the competition were attached to the application.

On October 24, 2014 the website of the Ministry of Justice published a news item about first 12 nominees who may become members of the Public Council. Together with the Minister of Justice, the nominees were represented by the ‘Head of the Public Council Yehor Soboliev’. So it remained unclear when, by whom, and based on what grounds these nominees were selected, as well as when, by whom, and based on what grounds Yehor Soboliev was appointed Head of the Public Council, if the Council itself had not been practically established yet. And why was such discriminatory promotion given to a representative of one political force, ‘Volia’ Party that Yehor Soboliev represents?

The head of the Public Council on lustration Yegor Sobolev. Photo source: volya.ua

Moreover, these 12 nominees who the high-ranking official, Minister of Justice of Ukraine, presented to the Ukrainian community receive a disproportional (discriminatory) advantage in the eyes of the general public over other possible nominees for appointment to the Public Lustration Council.

It became even more interesting then. Here is what the court has established in its judgement:

“On October 13, 2014, the website of the Ministry of Justice of Ukraine released the information on the initiation of competition for the selection of future members of the Public Council under the Ministry of Justice of Ukraine.

By the letter dd. November 19, 2014, the Ministry of Justice of Ukraine, as per request dd. October 20, 2014, informed the applicant that the Regulations on the Public Lustration Council under the Ministry of Justice of Ukraine were approved by the Order of the Ministry of Justice of Ukraine dd. November 04, 2014 No. 1844/5, published in the Official Bulletin of Ukraine No. 87 on November 07, 2014 and at the official website of the Ministry of Justice of Ukraine in the ‘Government Cleansing’ section. The applicant was also informed that the composition of the Public Lustration Council under the Ministry of Justice of Ukraine was approved by the Order of the Ministry of Justice of Ukraine dd. November 11, 2014 No.1743/6.

Furthermore, by the letter dd. December 26, 2014, the applicant was informed that following the Order of the Ministry of Justice of Ukraine dd. November 04, 2014 No. 1844/5 the Public Lustration Council under the Ministry of Justice of Ukraine was established and the Council’s Regulations were approved. The applicant was further informed that the composition of the Public Lustration Council under the Ministry of Justice of Ukraine was approved by the Order of the Ministry of Justice of Ukraine dd. November 11, 2014 No.1743/6.

Following the Order of the Ministry of Justice of Ukraine dd. November 04, 2014 No. 1844/5, registered at the Ministry of Justice of Ukraine on November 04, 2014 under No. 1386/26163, the Public Lustration Council under the Ministry of Justice of Ukraine (hereinafter referred to as the Council) was established and Regulations on the Public Lustration Council under the Ministry of Justice of Ukraine (hereinafter referred to as the Regulations) were approved.

Under clause 1 of the Regulations, the Public Lustration Council under the Ministry of Justice of Ukraine (hereinafter referred to as the Council) is a collective advisory agency established to ensure participation of the citizens in administration of state affairs, exercise public control over the government cleansing process (lustration), adjust the effective cooperation of the Ministry of Justice of Ukraine with civil society, as well as to consider public opinion in formation and implementation of state policy.

Paragraph III of the Regulations outlines the procedure of formation of the Council, specifically: the Council may consist of the representatives of non-governmental, charitable organizations, trade unions and associations thereof, creative unions, associations, employers’ organizations, mass media, population self-organization entities, and other non-entrepreneurial companies and institutions incorporated under the applicable legislation of Ukraine (hereinafter referred to as the civil society institutions).

The Council is represented by the Council’s Secretary appointed by the Minister of Justice from among the representatives of the civil society institutions, who proved themselves as active participants in fighting corruption, government cleansing, and enjoy the public’s trust. The Council shall not include individuals who are officers or officials of the government agencies, local government bodies, individuals subject to the bans provided for by the Law of Ukraine on Government Cleansing. The Council’s Secretary shall propose other candidate members of the Council for approval of the Minister of Justice, who meet the eligibility criteria indicated herein. The Council shall be composed of twelve members.”

The Court found that the Regulations become effective as of the date of publication, i.e. as of November 07, 2014 (published in the Official Bulleting of Ukraine No. 87 dd. November 07, 2014).

Thus, the Council’s Secretary is appointed by the Minister of Justice of Ukraine from among the representatives of the civil society institutions, whereas other members of the Council are approved by the Minister of Justice of Ukraine as proposed by the Council’s Secretary.

Approval of the Council Secretary’s proposal on appointment of the Council’s members is the duty of the Minister of Justice of Ukraine.”

Thus, it has been conclusively established that as of the moment of formation of the Public Council, there were no lawfully approved Regulations for formation of this agency, and no competition was held.

Specifically, the court held: “during the court’s hearing of the case it has been established that as of the moment of formation of the Public Lustration Council’s composition, there was practically no procedure for the establishment of such council, which is confirmed in the court’s session by representatives of the parties.”

The court also calls attention the fact that: “There is no evidence of an examination in the case files as to whether the bans provided for by the Law of Ukraine on Government Cleansing apply to the Secretary and members of the Council. The order for approval of the Council’s composition was adopted based on the proposal of the Council’s Secretary Soboliev Y.V.

In view of the above, the court agrees to the argumentation of the claimant that in dealing with the matter of formation of the Public Lustration Council under the Ministry of Justice of Ukraine, compliance with the principles of impartiality, equality, as well as the right of individuals to participate in the process of making of a corresponding decision are therefore doubtful, since the Public Council’s composition is practically determined at the Council Secretary’s sole discretion.”

The final conclusion suggests itself: 1) there was no competitive selection held; so the public commitment of the Minister of Justice as regards the competitive selection does not correspond to reality; 2) the Minister of Justice appointed Council’s Secretary Yehor Soboliev for personal reasons, at his own discretion, on a non-alternative basis; 3) twelve members of the Public Lustration Council were appointed by the Minister following personal choice and preferences of the Council’s Secretary Yehor Soboliev.

A rhetorical question is then whether this agency was lawfully formed, in whose favor it operates and will operate further on.